The Director is authorized to enter
into written cooperative agreements with the States or state agencies
to assist
in achieving the purposes set out in this subtitle.The Director is authorized to enter into
written cooperative agreements with the departments or agencies of the
National
Government of the Federated States of Micronesia to assist in
achieving the
purposes of this subtitle.

Source:PL 3-38 § 12; renumbered by
PL 5-21 § 15; PL
17-57 § 14.

Editor’s
note:A subsection (1) of this
section was
designated, but no other subsections were set forth in this section.Therefore, the subsection
(1) designation was
removed.

PL
17-57
was signed into law by President Manny Mori on June 15, 2012.

Cross-reference: The
statutory provisions on the President and the Executive
are found in title 2 of this code.

§
302.Environmental
impact statements.

(1)Any
person, prior to taking any action that may significantly affect the
quality of
the environment within the Exclusive Economic Zone of the Federated
States of
Micronesia, or within the boundaries of the National Capital Complex
at
Palikir, must submit an environmental impact statement to the
Director, in
accordance with regulations established by the Director.

(2)The
environmental impact statements required by subsection (1) of this
section are public
documents, and must include a detailed statement on:

(a)the
environmental impact of the proposed action;

(b)any
adverse environmental effects which cannot be avoided should the
proposal be
implemented;

(c)the
alternatives to the proposed action;

(d)the
relationship between local short-term uses of the environment and the
maintenance and enhancement of long-term productivity; and

(e)any
irreversible and irretrievable commitments of resources which would be
involved
in the proposed action should it be implemented.

Source:PL 3-38 § 13; renumbered by
PL 5-21 § 15; PL
17-57 § 15.

Cross-reference: The
statutory provisions on the President and the Executive
are found in title 2 of this code.

§
303.Right of entry
and seizure.

(1)Whenever
it is necessary for the purposes of this subtitle, the Director, or
any officer,
agent, or employee when duly authorized by the Director or by court
order, may,
at reasonable times, enter any establishment or upon any property.

(2)Whenever
it is necessary for the purposes of this subtitle, the Director, or
any
officer, agent, or employee when duly authorized by the Director, may
seize any
substance, materials, goods or equipment which the Director, or any
officer,
agent, or employee reasonably suspects is the subject of a breach of
any
provision of this subtitle or regulations made pursuant to this
subtitle.

(3)Any
substance, materials, goods or equipment seized under this section:

(a)shall
be stored at a place, and in a manner, in accordance with a direction
given by the
Director; and

(b)may
be retained until such time as the Director has been satisfied by its
owner, or
the person from whom it has been seized, that it is not and has not
been the
subject of any breach of this subtitle or regulations made pursuant to
this subtitle.

(4)Where
it is agreed by the owner of the substance, materials, goods or
equipment that
they are the subject of a breach of this subtitle or regulations made
pursuant
to this subtitle, or where the owner has not satisfied the Director
under
subsection (3) of this section within six months of the date of
seizure, the
substance, materials, goods or equipment may be disposed of or
destroyed in a
manner determined by the Director.

Source:PL 3-38 § 14; renumbered by
PL 5-21 § 15; PL
17-57 § 16.

Cross-reference: The
statutory provisions on the President and the Executive
are found in title 2 of this code.

§
304.Violation—Enforcement
action.

Any person who violates any
provision of this subtitle, or any permit, regulation, standard, or
order
issued or promulgated under this subtitle, shall be subject to
enforcement
action by the Office.Such
enforcement
action may include, but is not limited to:

(1)An
order to cease and desist from the violation, or to comply within a
specific
time period;

(2)An
order to clean up or abate the effects of any pollutant;

(3)The
imposition of a civil penalty up to $100,000 for each day of the
violation.
Penalties collected under this subsection shall be paid to the
Treasury of the
Federated States of Micronesia for credit to the General Fund of the
Federated
States of Micronesia;

(4)A
civil action commenced in the Trial Division of the Federated States
of
Micronesia Supreme Court to enjoin the violation;

(5)A
civil action for damages commenced in the Trial Division of the
Federated
States of Micronesia Supreme Court.Such
action may be in addition to any civil penalties imposed hereunder.In determining such damages,
the Court shall
take into consideration all relevant circumstances, including, but not
limited
to, the extent of harm caused by the violation, the nature and
persistence of
the violation, the length of time over which the violation occurred,
and
corrective action, if any, taken by the violator.Damages collected under this subsection shall
be paid to the Treasury of the Federated States of Micronesia for
credit to the
General Fund of the Federated States of Micronesia; and

(6)Conducting
a public hearing to determine the authenticity of the facts upon which
the
alleged violation is based, adequate notice of which and opportunity
to appear
and be heard at which shall be afforded to all interested persons.

Source:PL 3-38 § 15; renumbered by
PL 5-21 § 15; PL
17-57 § 17.

Cross-reference:The
statutory
provisions on the FSM Supreme Court and the Judiciary are found in
title 4 of
this code.The statutory
provisions on
the President and the Executive are found in title 2 of this code.

The FSM Supreme Court website contains court
decisions,
rules, calendar, and other information of the court, the Constitution,
the code
of the Federated States of Micronesia, and other legal resource
information at http://www.fsmsupremecourt.org/.

Case annotations:Earthmoving
regulations
themselves represent a governmental determination as to the public
interest, and the clear violation of such regulations may therefore be
enjoined
without a separate court assessment of the public interest and
balancing of
hardships between the parties.Damarlane v. Pohnpei Transp.
Auth., 4
FSM R. 347, 349 (Pon. 1990).

Where
the national
government, in previous appearances and filings, stated that no valid
earthmoving permit was in effect the burden is on the national
government at a
motion for summary judgment to establish that there was a valid
delegation of
permit granting authority by the national government to the state
officials.Damarlane v. Pohnpei Transp. Auth., 5 FSM R. 1, 7 (Pon. 1991).

Although
neither
the Environmental Protection Act nor the earthmoving regulations
contain any
absolute requirement that a public hearing be held before an
earthmoving permit
may be issued, the issuance by national government officials of a
permit
authorizing earthmoving by a state agency without holding a hearing
and based
simply upon the application filed by the state agency and the minutes
prepared
by the state officials, is arbitrary and capricious where the dredging
activities have been long continued in the absence of a national
earthmoving
permit and where the parties directly affected by those activities
have for
several months been vigorously opposing continuation of the
earthmoving
activities at the dredging site.Damarlane v. Pohnpei
Transp. Auth., 5
FSM R. 1, 8 (Pon. 1991).

Various
environmental
acts that do not provide for a private citizen’s cause of action
for monetary damages cannot be used to create a duty for the breach of
which
damages may be awarded.Damarlane v. United States, 6
FSM R.
357, 360-61 (Pon. 1994).

Claims
for damages
for violation of the FSM Environmental Protection Act and for damage
based on
an alleged property interest in the reef and lagoon adjoining
plaintiffs’ land
will be dismissed for failure to state a claim for which relief may be
granted.Damarlane v. FSM, 8 FSM R. 119, 121 (Pon. 1997).

A
savings clause
that merely states that private parties who could previously seek
civil
remedies for what are now violations of the Chuuk State Environmental
Protection Act still retain that right even if the Chuuk Environmental
Protection Agency decides to act, does not create any new rights for
those
persons.Nor does it
entitle them to
collect any of the penalties created which may be asserted only by the
Chuuk
Environmental Protection Agency and only to its credit.Moses
v. M.V. Sea Chase, 10 FSM R. 45, 51 (Chk. 2001).

When
Pohnpei’s
refusal to hold a trochus
harvest
allegedly stemmed from environmental concerns, but all of the reports
addressing this issue recommended that a trochus
harvest be held and the concern was not that there would be too little
trochus, but that there
would be too
much, nothing stood in the way of reasonable limitations on the
harvest that
could have harmonized both Pohnpei’s legitimate environmental concerns
and the
national law requirement that it not limit the production of any
commodity.Failure to do
so violated 32
F.S.M.C. 302(2).AHPW, Inc. v. FSM, 12 FSM R. 544, 552 (Pon. 2004).

A
cause of action
exists in admiralty and maritime law for recovery of damages for oil
contamination of wildlife and other natural resources in the marine
environment.The type of
injury includes
both physical loss or injury, such as due to the grounding on the
reef, as well
as loss of use, either because of a government ban or because there
has been a
diminution of the resources because of oil contamination.Maritime nations generally recognize that
parties injured by an oil spill should recover their damages, as the
polluter
must pay.Such a cause of
action is
available under the general admiralty and maritime law of the
Federated States
of Micronesia.People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403,
416 (Yap 2006).

No
offset for sums
spent on cleanup can be given since the defendants had a duty to
mitigate their
damages and a legal duty imposed by Yap law to respond to the oil
spill and
clean up as much as possible.The
oil
spill cleanup protected them from greater liability.People
of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403, 420
(Yap 2006).

When
the issue of
continued monitoring of the marine environment remains unresolved, the
court
may hold in abeyance its ruling with respect to the monitoring issue
and will
retain jurisdiction over this issue in the expectation that the
parties (and
the State) can resolve any differences themselves.People
of Rull ex rel. Ruepong v. M/V Kyowa Violet, 14 FSM R. 403, 422
(Yap 2006).

§
305.Administrative
procedure
applicable.

The provisions of sections 304 and 307
of this chapter shall be interpreted consistently with the provisions
of any
law concerning administrative procedure which is or may hereafter
become
Federated States of Micronesia law.In
the event of conflict between the two, the provisions of the latter
shall
supersede and be controlling.

Source:PL 3-83 § 16; renumbered by
PL 5-21 § 15; PL
17-57 § 18.

Cross-reference: The
statutory provisions on the President and the Executive
are found in title 2 of this code.The
statutory provisions on Administrative Procedure are found in title 17
of this
code.

§
306.Judicial review.

(1)Any
person who is or will be adversely affected by the enforcement of any
standard,
policy, regulation, permit, order, or penalty imposed under this
subtitle or
regulations made pursuant to this subtitle and who alleges its
invalidity may
file a petition for a declaratory judgment thereon in the Trial
Division of the
Federated States of Micronesia Supreme Court.

(2)The
Court shall declare the standard, policy, regulation, permit, order,
or penalty
invalid if it finds that it exceeds the statutory authority of the
Director, or
that it is arbitrary and capricious.

Source:PL 3-83 § 17; renumbered by
PL 5-21 § 15; PL
17-57 § 19.

Cross-reference:The
statutory
provisions on the FSM Supreme Court and the Judiciary are found in
title 4 of
this code.

The FSM Supreme Court website contains court
decisions,
rules, calendar, and other information of the court, the Constitution,
the code
of the Federated States of Micronesia, and other legal resource
information at http://www.fsmsupremecourt.org/.

§
307.False statement.

Any person who knowingly makes any
false statement, representation, or certification in any application,
record,
report, plan, or other document filed or required to be maintained
under this subtitle,
or by any permit, regulation, or order issued under this subtitle, or
who
falsifies, tampers with, or knowingly renders inaccurate any
monitoring device
or method required to be maintained under this subtitle or by a
permit,
regulation, or any order issued under this subtitle, is guilty of a
felony, and
upon conviction thereof, shall be punished by a fine of not more than
$100,000,
or by imprisonment for a maximum of ten years, or by both.

Source:PL 3-83 § 18; renumbered by
PL 5-21 § 15; PL
17-57 § 20.

§
308.Authorized
officers.

Agreements made under section 301 of
this subtitle may include the authorization by the Director of
officers of
national and state government agencies to perform the duties and
exercise the
powers provided in this subtitle or in regulations adopted and
promulgated
pursuant to this subtitle.

Source:PL 3-83 § 19; renumbered by
PL 5-21 § 15; PL
17-57 § 21.

Cross-reference: The
statutory provisions on the President and the Executive
are found in title 2 of this code.